United States District Court, D. Montana, Butte Division
Jeremiah C. Lynch United States Magistrate Judge.
for Plaintiff Dan Patrick McCaul (“Counsel”) have
filed a motion to withdraw as counsel pursuant to District of
Montana Local Rule 83.3, and a corresponding motion for a 90
day stay of proceedings to give Plaintiff adequate time to
retain new counsel or appear pro se. Defendants oppose both
procedural and substantive requirements for the withdrawal of
counsel are set forth in Local Rule 83.3, which requires
leave of court “[w]hen an attorney's withdrawal
will leave any party without counsel for any period of
time.” Whether to grant or deny a motion to
withdraw in a civil case is within the Court's
discretion. Marshall v. Billings Clinic, 2016 WL
1312012 *1 (D. Mont. Apr. 4, 2016) (citing several cases).
See also, LaGrand v. Stewart, 133 F.3d 1253, 1269
(9th Cir. 1998). District courts in the Ninth
Circuit consider “several factors when evaluating a
motion to withdraw, including the reason for withdrawal,
prejudice to the client, prejudice to the other litigants,
harm to the administration of justice, and possible
delay.” Marshall, 2016 WL 1312012 *1 (quoting
Arch v. Ins. Co. v. Sierra Equipment Rental, Inc.,
2016 WL 829208 *1 (E.D. Cal. March 3, 2016)).
respect to the first factor, Counsel explain they are seeking
to withdraw on the ground that “fundamental differences
make it unreasonably difficult” for them to adequately
represent Plaintiff in this matter. (Doc. 103, at 2). As
required by Local Rule 83.3, Counsel have filed supporting
affidavits setting forth the factual basis of their motion to
withdraw in more detail. (Doc. 104). While Counsel's
stated reasons for seeking withdrawal are legitimate, the
Court finds that the remaining factors weigh against granting
Counsel to withdraw at this point in the litigation would
prejudice their client, as well as the other litigants.
Discovery is set to close in just two weeks -- on November
12, 2018 -- and there are several depositions scheduled to
take place before then. (Docs. 86; 101, at 4 n.1). In
addition, all motions must be fully briefed by December 17,
2018, and trial is set to begin on February 19, 2019. (Doc.
86). If Counsel are allowed to withdraw at this late stage,
Plaintiff would be prejudiced by having to meet these
deadlines while proceeding pro se or find new counsel to
represent him with several pretrial deadlines looming and
trial fast approaching. Likewise, Defendants would be
prejudiced by having their pretrial preparations interrupted
and resolution of the claims against them delayed.
argue any prejudice to Plaintiff would be minimized by
staying these proceedings for 90 days, extending the
remaining pretrial deadlines, and vacating the trial date.
While an order to that effect might alleviate some of the
prejudice to Plaintiff, it would correspondingly result in
additional prejudice to Defendants. This case was filed by
Plaintiff, appearing pro se, on June 30, 2017. Counsel
appeared in the case on behalf of Plaintiff on December 10,
2017, at which time the scheduling order was amended to
accommodate counsel. (Doc. 74). The schedule was again
amended to pursuant to stipulation of the parties, with the
trial date extended by five months. (Doc. 86). Allowing
Counsel to withdraw at this juncture would require a similar
extension to give Plaintiff time to find new counsel or
prepare to proceed pro se, thereby prejudicing the
administration of justice and further delaying a final
resolution in the case.
allowing Counsel to withdraw with the discovery and motions
deadlines looming and trial just a few months away would
prejudice the parties, hinder the administration of justice,
and delay the ultimate resolution of the case, IT IS ORDERED
that Counsel's Expedited Motion for Leave to Withdraw as
Counsel for Plaintiff (doc. 102) and Expedited Motion for
Stay (doc. 100) are DENIED.
Local Rule 83.3 also requires
an affidavit of counsel showing that a notice of intent to
file a motion to withdraw was personally served on the client
at least 14 days prior to filing the motion to withdraw. L.R.
83.3(b)(2)(B)(i). Counsel served Plaintiff with the requisite
notice on October 15, 2018, and filed their motion to
withdraw one week later. Although Counsel filed their motion
before the 14 day time period ended, the Court will waive
this requirement under the circumstances and consider their
motion to withdraw on the merits. See Local Rule 1.1(c)